RCW v A Local Authority

A decision to remove a child from prospective adopters is momentous. It must be based on a sound welfare assessment and reached fairly. The prospective adopter must have a full and informed opportunity to address the authority’s concerns. A disability, including visual impairment, does not by itself disqualify a person from providing appropriate emotional care. The assessment must consider the individual’s actual capacity, support arrangements and medical prognosis. An assessment made immediately after major surgery, without adequate enquiry or consideration of practical support, may be insufficient and procedurally unfair.

The claimant was a prospective adopter caring for a baby placed with her under a placement order. Shortly after the placement, the claimant underwent urgent brain surgery and suffered serious visual impairment. The defendant local authority decided to remove the child and notified the claimant of its intention to do so.

The claimant sought urgent injunctive relief under sections 6 and 7 of the Human Rights Act 1998. She relied on the statutory protection in section 35(5) of the Adoption and Children Act 2002, Convention rights, common-law fairness and disability discrimination. The central issues were whether the adoption application preceded the notice and whether the removal decision had been reached lawfully and fairly.

1. The application for an injunction was granted. The local authority was restrained from removing the child from the claimant’s care.

2. The court considered that section 35(5) of the Adoption and Children Act 2002 would prevent removal without a court order if an adoption application had been made before written notice was given under section 35(2). There was a prima facie case that this had occurred. It was unnecessary to decide whether an application was made when lodged with the court, or only when formally issued. The judge indicated that lodging properly completed papers was the preferable view, given the potential unfairness caused by administrative delay.

3. Independently of the timing issue, removal was a momentous decision requiring a solid welfare-based evaluation and a fair process. The claimant had not been invited to the relevant planning meetings and had not been given a full and informed opportunity to address concerns about her ability to care for the child, her support network or the effect of her condition.

4. The local authority’s process was materially deficient. Its assessment was limited, undertaken immediately after the claimant’s discharge from hospital, and based on inadequate information about her condition and prognosis. It had not properly explored the available friends, support services or an integrated support package. The resulting decision breached the procedural rights protected by Articles 6 and 8 of the Convention and the common-law principle of fairness.

5. Visual impairment did not of itself establish that the claimant could not provide appropriate emotional care. The child was receiving good physical care, and assistance from friends was not inherently contrary to the child’s emotional welfare. The claimant’s longer-term arrangements required proper assessment, including whether a single support carer or nanny would provide a better arrangement.

6. The judge stopped short of finding that the local authority’s assumptions were discriminatory under section 15 of the Equality Act 2010, but found a serious lack of enquiry into the condition and potential capacity of a visually impaired parent.